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No showing laid-off 62-year-old physical plant director’s position was filled by rehired younger subordinate

By Kathleen Kapusta, J.D.

Discriminatory animus, said First Circuit, cannot be inferred solely from the subsequent hiring of a younger individual for a position plainly inferior to the employee’s previous position.

Affirming judgment as a matter of law in favor of a hospital employer, the First Circuit found that a 62-year-old laid-off employee failed to show his former job, or a position involving comparable duties and responsibilities, was subsequently filled by his 36-year-old deputy, who had also been laid off but then rehired several months later. Nor could he show he applied for the position and did not get the job because the employer preferred a younger candidate (Hoffman-Garcia v. MetroHealth, Inc. dba Hospital Metropolitano, March 19, 2019, Boudin, M.).

Laid off. After the hospital failed several inspections, including one by the Center for Medicare and Medicaid Services, it closed the department the employee, as physical plant director, headed, and laid him off. It also laid off all the staff employed in that department, including his 36-year-old deputy, and then hired an outside contractor to perform maintenance services. Three months later, the deputy was rehired for the newly created safety officer positon.

Lower court proceedings. Asserting that the rehiring of the younger deputy, instead of him, was age-based discrimination, the employee sued under the ADEA and Puerto Rico law. Granting the hospital’s summary judgment motion in part, the district court found the hospital had facially legitimate, nondiscriminatory grounds to close the department and terminate the employee’s position; but absent trial, the court declined to decide whether the hospital treated age neutrally when it rehired the deputy rather than the employee.

A jury trial then ensued but at the close of evidence, the lower court granted the hospital’s motion for judgment as a matter of law, finding that the safety officer position varied significantly in its duties and requirements from those of the physical plant director and that the employee never applied for the safety officer job. It also granted judgment as a matter of law on his Puerto Rico law claims.

Hospital director’s testimony. On appeal, the employee pointed to language from the district court’s oral announcement and subsequent written order mentioning the hospital director’s uncontested testimony that age did not factor into his decision to rehire the deputy and that because the safety officer position was inferior in authority and salary to the physical plant director job, he did not believe the employee would have been interested. In the Rule 50 context, the employee argued, it is improper to consider the credibility of witnesses as that is within the province of the jury.

Finding much of the director’s testimony, and the lower court’s mention of it, to be beside the point, the appeals court found that the employee failed to show his physical plant director positon, or a comparable job, was subsequently filled by a younger person or that he applied for a positon and did not get the job because the hospital preferred a younger candidate.

Fatal defects. Not only was the physical plant director position eliminated entirely, the safety officer position came with a monthly salary of $2,183 compared to the $7,432 a month the employee was earning at the time his positon was eliminated. Moreover, he never applied for the safety officer positon, which in the similar context of Title VII failure-to-rehire retaliation cases, said the court, is a fatal defect.

In addition, his physical plant director duties minimally overlapped with the safety officer duties as the deputy, in his new role, had no director-level, decision-making responsibility. Nor did he attend meetings with other directors, supervise contractors, oversee the budget, or otherwise manage the physical plant. And while the deputy inherited some of the employee’s responsibility for safety issues, it was only a small portion of his duties, said the court, nothing further that discriminatory animus cannot be inferred solely from the subsequent hiring of a younger employee for a position plainly inferior to the employee’s previous job.